Certificate of Incorporation - Mattel Inc.

By
Mattel Inc.

RESTATED CERTIFICATE OF INCORPORATION
OF
MATTEL, INC.
(Originally incorporated on March 6, 1968)
FIRST: The name of the corporation (hereinafter called the "Company") is
MATTEL, INC.
SECOND: The registered office of the Company in the State of Delaware is
located at Corporation Trust Center, 1209 Orange Street, in the City of
Wilmington, in the County of New Castle. The name of its registered agent at
that address is The Corporation Trust Company.
THIRD: The purpose of the Company is to engage in any lawful act or
activity for which corporations may be organized under the General Corporation
Law of Delaware.
FOURTH: The Company is authorized to issue a total of three hundred
twenty three million (323,000,000) shares of all classes of stock. Of such total
number of authorized shares of stock, three hundred million (300,000,000) shares
are Common Stock, each of which shares of Common Stock has a par value of One
Dollar ($1.00), three million (3,000,000) shares are Preferred Stock, each of
which shares of Preferred Stock has a par value of One Dollar ($1.00), and
twenty million (20,000,000) shares of Preference Stock, each of which shares of
Preference Stock has a par value of one cent ($0.01).
A statement of the designations of the authorized classes of stock or of
any series thereof, and the powers, preferences and relative, participating,
optional or other special rights, and qualifications, limitations or
restrictions thereof, or of the authority of the Board of Directors to fix by
resolution or resolutions such designations and other terms, is as follows:
A. Preferred Stock and Preference Stock:
Shares of Preferred Stock and Preference Stock may be issued from time to
time in one or more series.
The Board of Directors is hereby authorized, within the limitations and
restrictions stated in this Article FOURTH, to fix by resolution or resolutions
the designation of each series of Preferred Stock and Preference Stock and the
powers, preferences and relative, participating, optional or other special
rights, and qualifications, limitations or restrictions thereof, including
without limiting the generality of the foregoing, such provisions as may be
desired concerning voting, redemption, dividends, dissolution or the
distribution of assets,
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conversion or exchange, and such other subjects or matters as may be fixed by
resolution or resolutions of the Board of Directors under the General
Corporation Law of Delaware.
If any proposed amendment to the Certificate of Incorporation of the
Company would alter or change the preferences, special rights or powers given to
any one or more outstanding series of Preferred Stock or Preference Stock so as
to affect such series adversely, or would authorize the issuance of a class or
classes of stock having preferences or rights with respect to dividends or
dissolution or the distribution of assets that would be superior to the
preferences or rights of such series of Preferred Stock or Preference Stock,
then the holders of each such series of Preferred Stock or Preference Stock so
affected by the amendment shall be entitled to vote as a series upon such
amendment, and the affirmative vote of two-thirds (2/3) of the outstanding
shares of each such series shall be necessary to the adoption thereof, in
addition to such other vote as may be required by the General Corporation Law of
Delaware.
The number of authorized shares of Preferred Stock and Preference
Stock may be increased or decreased by the affirmative vote of the holders
of a majority of the stock of the Company entitled to vote, without there
being a class vote of the Preferred Stock or Preference Stock.
B. Common Stock:
Subject to all of the preferences and rights of the Preferred Stock and the
Preference Stock or a series of either that may be fixed by a resolution or
resolutions of the Board of Directors, dividends may be paid on the Common Stock
as and when declared by the Board of Directors, out of any funds of the Company
legally available for the payment of such dividends.
Except as may otherwise be provided by a resolution or resolutions of the
Board of Directors concerning the Preferred Stock and the Preference Stock or a
series of either, or by this Certificate of Incorporation or the General
Corporation Law of Delaware, the holders of the shares of Common Stock issued
and outstanding shall have and possess the exclusive right to notice of
stockholders' meetings and the exclusive power to vote.
C. Series E Junior Participating Preference Stock:
The designated powers, preferences and relative participating, optional or
other special rights, and qualifications, limitations or restrictions thereof,
of the Series E Junior Participating Preference Stock are as follows:
1. Designation and Amount. The shares of such series shall be designated
as "Series E Junior Participating Preference Stock" (the "Series E Preference
Stock") and the number of shares constituting the Series E Preference Stock
shall be 2,000,000. Such number of shares may be increased or decreased by
resolution of the Board of Directors;
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provided, that no decrease shall reduce the number of shares of Series E
Preference Stock to a number less than the number of shares then outstanding
plus the number of shares reserved for issuance upon the exercise of outstanding
options, rights or warrants or upon the conversion of any outstanding securities
issued by the Company convertible into Series E Preference Stock.
2. Dividends and Distributions.
(A) Subject to the rights of the holders of any shares of any series
of Preferred Stock, par value $1.00 per share (the "Preferred Stock"),
of the Company or Preference Stock (or any similar stock) ranking
prior and superior to the Series E Preference Stock with respect to
dividends, the holders of shares of Series E Preference Stock, in
preference to the holders of Common Stock, par value $1.00 per share
(the "Common Stock"), of the Company, and of any other junior stock,
shall be entitled to receive, when, as and if declared by the Board of
Directors out of funds legally available for the purpose, quarterly
dividends payable in cash on the first day of March, June, September
and December in each year (each such date being referred to herein as
a "Quarterly Dividend Payment Date"), commencing on the first
Quarterly Dividend Payment Date after the first issuance of a share or
fraction of a share of Series E Preference Stock, in an amount per
share (rounded to the nearest cent) equal to the greater of (a) $1 or
(b) subject to the provision for adjustment hereinafter set forth, 100
times the aggregate per share amount of all cash dividends, and 100
times the aggregate per share amount (payable in kind) of all non-cash
dividends or other distributions, other than a dividend payable in
shares of Common Stock or a subdivision of the outstanding shares of
Common Stock (by reclassification or otherwise), declared on the
Common Stock since the immediately preceding Quarterly Dividend
Payment Date or, with respect to the first Quarterly Dividend Payment
Date, since the first issuance of any share or fraction of a share of
Series E Preference Stock. In the event the Company shall at any time
declare or pay any dividend on the Common Stock payable in shares of
Common Stock, or effect subdivision or combination or consolidation of
the outstanding shares of Common Stock (by reclassification or
otherwise that by payment of a dividend in shares of Common Stock)
into a greater or lesser number of shares of Common Stock, then in
each such case the amount to which holders of shares of Series E
Preference Sock were entitled immediately prior to such event under
clause (b) of the preceding sentence shall be adjusted by multiplying
such amount by fraction, the numerator of which is the number of
shares of Common Stock outstanding immediately after such event and
the denominator of which is the number of shares of Common Stock that
were outstanding immediately prior to such event.
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(B) The Company shall declare a dividend or distribution on the
Series E Preference Stock as provided in paragraph (A) of this Section
immediately after it declares a dividend or distribution on the Common
Stock (other than a dividend payable in shares of Common Stock);
provided that, in the event no dividend or distribution shall have
been declared on the Common Stock during the period between any
Quarterly Dividend Payment Date and the next subsequent Quarterly
Dividend Payment Date, a dividend of $1 per share on the Series E
Preference Stock shall nevertheless be payable on such subsequent
Quarterly Dividend Payment Date.
(C) Dividends shall begin to accrue and be cumulative on outstanding
shares of Series E Preference Stock from the Quarterly Dividend
Payment Date next preceding the date of issue of such shares, unless
the date of issue of such shares is prior to the record date for the
first Quarterly Dividend Payment Date, in which case dividends on such
shares shall begin to accrue from the date of issue of such shares, or
unless the date of issue is a Quarterly Dividend Payment Date or is a
date after the record date for the determination of holders of shares
of Series E Preference Stock entitled to receive a quarterly dividend
and before such Quarterly Dividend Payment Date, in either of which
events such dividends shall begin to accrue and be cumulative from
such Quarterly Dividend Payment Date. Accrued but unpaid dividends
shall not bear interest. Dividends paid on the shares of Series E
Preference Stock in an amount less than the total amount of such
dividends at the time accrued and payable on such shares shall be
allocated pro rata on a share-by-share basis among all such shares at
the time outstanding. The Board of Directors may fix a record date for
the determination of holders of shares of Series E Preference Stock
entitled to receive payment of a dividend or distribution declared
thereon, which record date shall be not more than 60 days prior to the
date fixed for the payment thereof.
3. Voting Rights. The holders of shares of Series E Preference Stock
shall have the following voting rights:
(A) Subject to the provision for adjustment hereinafter set forth,
each share of Series E Preference Stock shall entitle the holder
thereof to 100 votes on all matters submitted to a vote of the
stockholders of the Company. In the event the Company shall at any
time declare or pay any dividend on the Common Stock payable in shares
of Common Stock, or effect a subdivision or combination or
consolidation of the outstanding shares of Common Stock (by
reclassification or otherwise than by payment of a dividend in shares
of Common Stock) into a greater or lesser number of shares of Common
Stock, then in each such case the number of votes per share to which
holders of shares of Series E Preference Stock were entitled
immediately prior to such event shall be adjusted by multiplying such
number by a fraction, the
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numerator of which is the number of shares of Common Stock outstanding
immediately after such event and the denominator of which is the
number of shares of Common Stock that were outstanding immediately
prior to such event.
(B) Except as otherwise provided herein, in any other Certificate of
Designations creating a series of Preferred Stock or Preference Stock
or any similar stock, or by law, the holders of shares of Series E
Preference Stock and the holders of shares of Common Stock and any
other capital stock of the Company having general voting rights shall
vote together as one class on all matters submitted to a vote of
stockholders of the Company.
(C) Except as set forth herein, or as otherwise provided by law,
holders of Series E Preference Stock shall have no special voting
rights and their consent shall not be required (except to the extent
they are entitled to vote with holders of Common Stock as set forth
herein) for taking any corporate action.
4. Certain Restrictions.
(A) Whenever quarterly dividends or other dividends or distributions
payable on the Series E Preference Stock as provided in Section 2 are
in arrears, thereafter and until all accrued and unpaid dividends and
distributions, whether or not declared, on shares of Series E
Preference Stock outstanding shall have been paid in full, the Company
shall not:
(i) declare or pay dividends, or make any other distributions,
on any shares of stock ranking junior (either as to dividends or
upon liquidation, dissolution or winding up) to the Series E
Preference Stock;
(ii) declare or pay dividends, or make any other distributions,
on any shares of stock ranking on a parity (either as to
dividends or upon liquidation, dissolution or winding up) with
the Series E Preference Stock, except dividends paid ratably on
the Series E Preference Stock and all such parity stock on which
dividends are payable or in arrears in proportion to the total
amounts to which the holders of all such shares are then
entitled;
(iii) redeem or purchase or otherwise acquire for consideration
shares of any stock ranking junior (either as to dividends or
upon liquidation, dissolution or winding up) to the Series E
Preference Stock, provided that the Company may at any time
redeem, purchase or otherwise acquire shares of any such junior
stock in exchange for shares of any stock of the Company ranking
junior (as to dividends and upon
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dissolution, liquidation and winding up) to the Series E
Preference Stock; or
(iv) redeem or purchase or otherwise acquire for consideration
any shares of Series E Preference Stock, or any shares of stock
ranking on a parity (either as to dividends or upon liquidation,
dissolution or winding up) with the Series E Preference Stock,
except in accordance with a purchase offer made in writing or by
publication (as determined by the Board of Directors) to all
holders of such shares upon such terms as the Board of Directors,
after consideration of the respective annual dividend rates and
other relative rights and preferences of the respective series
and classes, shall determine in good faith will result in fair
and equitable treatment among the respective series or classes.
(B) The Company shall not permit any subsidiary of the Company to
purchase or otherwise acquire for consideration any shares of stock of
the Company unless the Company could, under paragraph (A) of this
Section 4, purchase or otherwise acquire such shares at such time and
in such manner.
5. Reacquired Shares. Any shares of Series E Preference Stock purchased
or otherwise acquired by the Company in any manner whatsoever shall be retired
and canceled promptly after the acquisition thereof. All such shares shall upon
their cancellation become authorized but unissued shares of Preference Stock and
may be reissued as part of a new series of Preference Stock subject to the
conditions and restrictions on issuance set forth herein, in the Certificate of
Incorporation, or in any other Certificate of Designation creating a series of
Preferred Stock or Preference Stock or any similar stock or as otherwise
required by law.
6. Liquidation, Dissolution or Winding Up. Upon any liquidation,
dissolution or winding up of the Company, no distribution shall be made (A) to
the holders of shares of stock ranking junior (either as to dividends or upon
liquidation, dissolution or winding up) to the Series E Preference Stock unless,
prior thereto, the holders of shares of Series E Preference Stock shall have
received $100 per share, plus an amount equal to accrued and unpaid dividends
and distributions thereon, whether or not declared, to the date of such payment,
provided that the holders of shares of Series E Preference Stock shall be
entitled to receive an aggregate amount per share, subject to the provision for
adjustment hereinafter set forth, equal to 100 times the aggregate amount to be
distributed per share to holders of shares of Common Stock, or (B) to the
holders of shares of stock ranking on a parity (either as to dividends or upon
liquidation, dissolution or winding up) with the Series E Preference Stock,
except distributions made ratably on the Series E Preference Stock and all such
parity stock in proportion to the total amounts to which the holders of all such
shares are entitled upon such liquidation, dissolution or winding up. In the
event the Company shall at any time declare or pay any dividend on the Common
Stock payable in shares of Common Stock, or effect a subdivision or combination
or consolidation of the
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outstanding shares of Common Stock (by reclassification or otherwise than by
payment of a dividend in shares of Common Stock) into a greater or lesser number
of shares of Common Stock, then in each such case the aggregate amount to which
holders of shares of Series E Preference Stock were entitled immediately prior
to such event under the provision in clause (A) of the preceding sentence shall
be adjusted by multiplying such amount by a fraction the numerator of which is
the number of shares of Common Stock outstanding immediately after such event
and the denominator of which is the number of shares of Common Stock that were
outstanding immediately prior to such event.
7. Consolidation, Merger, etc. In case the Company shall enter into any
consolidation, merger, combination or other transaction in which the shares of
Common Stock are exchanged for or changed into other stock or securities, cash
and/or any other property, then in any such case each share of Series E
Preference Stock shall at the same time be similarly exchanged or changed into
an amount per share, subject to the provision for adjustment hereinafter set
forth, equal to 100 times the aggregate amount of stock, securities, cash and/or
any other property (payable in kind), as the case may be, into which or for
which each share of Common Stock is changed or exchanged. In the event the
Company shall at any time declare or pay any dividend on the Common Stock
payable in shares of Common Stock, or effect a subdivision or combination or
consolidation of the outstanding shares of Common Stock (by reclassification or
otherwise than by payment of a dividend in shares of Common Stock) into a
greater or lesser number of shares of Common Stock, then in each such case the
amount set forth in the preceding sentence with respect to the exchange or
change of shares of Series E Preference Stock shall be adjusted by multiplying
such amount by a fraction, the numerator of which is the number of shares of
Common Stock outstanding immediately after such event and the denominator of
which is the number of shares of Common Stock that were outstanding immediately
prior to such event.
8. No Redemption. The shares of Series E Preference Stock shall not be
redeemable.
9. Rank. The Series E Preference Stock shall rank, with respect to the
payment of dividends and the distribution of assets, junior to all series of any
other class of Preferred Stock or Preference Stock.
10. Amendment. If any proposed amendment to the Certificate of
Incorporation would alter or change the preferences, special rights or powers
given to the Series E Preference Stock so as to affect the Series E Preference
Stock adversely, or would authorize the issuance of a class or classes of stock
having preferences or rights with respect to dividends or dissolutions or the
distribution of assets that would be superior to the preferences or rights of
the Series E Preference Stock, then the holders of the Series E Preference Stock
shall be entitled to vote as a series upon such amendment, and the affirmative
vote of two-thirds of the outstanding shares of Series E Preference Stock shall
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be necessary to the adoption thereof, in addition to such other vote as may be
required by the General Corporation Law of the State of Delaware.
D. 12.5% Convertible Preference Stock, Series F:
The designated powers, preferences and relative participating, optional or
other special rights, and qualifications, limitations or restrictions thereof,
the 12.5% Convertible Preference Stock, Series F, are as follows:
1. Designation. The shares of such series shall be designated as "12.5%
Convertible Preference Stock, Series F" (the "Series F Stock")
2. Number of Shares. The number of shares constituting the Series F Stock
be and the same is hereby fixed as 864,293 and cannot be increased.
3. Stated Capital. The amount to be represented in stated capital at all
times for each share of the Series F Stock shall be its par value of $.01 per
share.
4. Rank. The Series F Stock shall, with respect to dividend rights and
rights on liquidation, rank (i) junior to, or on parity with, as the case may
be, any other series of the Preferred Stock or Preference Stock established by
the Board of Directors, the terms of which shall specifically provide that such
series shall rank senior to, or on parity with, as the case may be, the Series F
Stock with respect to dividend rights and rights on liquidation, and (ii) prior
to any other equity securities of the Company including all classes of the
Common Stock, $1.00 par value per share (collectively, the "Common Stock"), of
the Company. (All of such equity securities of the Company to which the Series F
Stock rank prior in right of dividends or in liquidation, as the case may be,
including all classes of the Common Stock, are at times collectively referred to
herein as the "Junior Securities".)
5. Dividends.
(A) From and after November 26, 1991 and prior to the date of
conversion thereof, the holders of such stock shall be entitled to
receive, out of the assets of the Company at the time legally
available therefor and before any dividend or other distribution is
declared or paid with respect to the outstanding shares of Common
Stock, cumulative cash dividends, as and when declared by the Board of
Directors of the Company, at the rate of $4.882 per share per annum.
Such dividends shall be payable in arrears, in equal quarterly
installments of $1.2205 per share on November 26, February 26, May 26
and August 26, or on such other date in November, February, May or
August of each year as or shall be designated by the Board of
Directors of the Company (each such date is referred to herein as a
"Dividend Payment Date" and the quarterly period between consecutive
Dividend Payment Dates is referred to herein as a "Dividend Period");
each such quarterly dividend shall be paid to
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the holders of record of outstanding shares of Series F Stock as their
names shall appear on the share register of the Company on the
corresponding Record Date. As used herein, the term "Record Date"
means, with respect to the quarterly dividends payable on November 26,
February 26, May 26 and August 26, respectively, the preceding
November 15, February 15, May 15 and August 15, or such other record
date as may be designated by the Board of Directors of the Company in
the event that the Board of Directors of the Company designates a
Dividend Payment Date other than the 26th day of each such month.
(B) If, on any Dividend Payment Date which is prior to the date of
conversion of shares of Series F Stock, full cash dividends pursuant
to subclause (A) above are not paid or made available to the holders
of outstanding shares of Series F Stock and the funds available to the
Company for such purpose shall be insufficient to permit payment in
full in cash to all such holders of outstanding shares of Series F
Stock of the preferential dividend amounts to which they are then
entitled pursuant to subclause (A) above, the entire amount available
for payment of cash dividends with respect to the outstanding shares
of Series F Stock pursuant to subclause (A) above shall be distributed
among the holders of outstanding shares of Series F Stock ratably, in
proportion to the full amounts to which they would otherwise be
entitled, and any remainder not paid in cash to the holders of
outstanding shares of Series F Stock shall cumulate as provided in
subclause (C) below.
(C) If, on any Dividend Payment Date which is prior to the date of
conversion of shares of Series F Stock, the holders of outstanding
shares of Series F Stock shall not have received the full cash
dividends to which they are entitled pursuant to sub-clause (A) above,
then such unpaid dividends shall cumulate, whether or not declared,
until so paid.
(D) In addition to the cumulative dividends payable with respect to
outstanding shares of Series F Stock pursuant to subclauses (A), (B)
and (C) above, from and after February 26, 1992 and prior to the date
(the "ESOP Payment Date") the trustee of the International Games, Inc.
("International") Restated Employee Stock Ownership Plan (the "ESOP")
receives written notice of final payment by the ESOP of all amounts
due to the Company pursuant to the Loan Agreement dated as of August
1, 1987, or a suitable replacement thereof, between International and
the ESOP (the "ESOP Loan Agreement"), the holders of such shares shall
be entitled to receive on any Dividend Payment Date in any year, out
of the assets of the Company at the time legally available therefor
and before any dividend or other distribution is declared or paid with
respect to the outstanding shares of Common Stock, noncumulative cash
dividends, as and when declared by the Board of Directors of the
Company, and in such amounts as the Board of Directors of
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the Company shall, in its sole discretion, from time to time determine
to be necessary, together with the amount of the Company's annual
contribution to the ESOP, to amortize all of the amounts due in such
year to the holders of the International's FRESOP Notes, Series 1987
A, or suitable replacements thereof, issued pursuant to the Indenture
of Trust, dated as of August 1, 1987, between the International, as
issuer, and Bankers Trust Company, as trustee, in accordance with the
terms thereof; provided, however, that in no event shall the
outstanding shares of Series F Stock be entitled to receive
noncumulative dividends pursuant to this subclause (D) in excess of
$.5889 per share per annum. Each such dividend shall be paid to the
holders of record of outstanding shares of Series F Stock as their
names shall appear on the share register of the Company on the
corresponding Record Date.
(E) In addition to the cumulative dividends payable with respect to
the outstanding shares of Series F Stock pursuant to subclauses (A),
(B) and (C) above and the noncumulative dividends payable with respect
to such shares pursuant to subclause (D) above, if, on any Dividend
Payment Date which is prior to the date of conversion of shares of
Series F Stock, after the payment of all dividends, if any, with
respect to the outstanding shares of Series F Stock pursuant to
subclauses (A), (B), (C) and (D) above, any dividend shall be declared
by the Board of Directors of the Company with respect to the
outstanding shares of Common Stock, the holders of outstanding shares
of Series F Stock on the applicable Record Date for the dividend on
the Common Stock shall be entitled to receive on the applicable
Dividend Payment Date dividends in such amount as they would be
entitled to receive if their shares of Series F Stock had been
converted into shares of Common Stock on the applicable Record Date.
6. Distributions Upon Liquidation, Dissolution or Winding Up.
(A) In the event of any voluntary or involuntary liquidation,
dissolution or winding up of the affairs of the Company which is prior
to the ESOP Payment Date, after the payment in full of all
preferential liquidation amounts to which the holders of outstanding
shares of Preferred Stock or Preference Stock ranking senior to the
Series F Stock shall be entitled, but before any distribution or
payment shall be made to the holders of outstanding shares of Common
Stock, the holders of outstanding shares of Series F Stock shall be
entitled to receive, out of the assets of the Company at the time
legally available therefor, an amount equal to the positive sum, if
any, of (x) $39.056 per share, together with all dividends accrued
(whether or not declared) during the dividend period in which such
liquidation, dissolution or winding up occurs and all cumulated and
unpaid dividends, if any, accrued during any prior dividend periods,
less (y) the quotient obtained by dividing the principal amount of the
indebtedness of the ESOP to the Company pursuant to the
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ESOP Loan Agreement outstanding on the date of such voluntary or
involuntary liquidation, dissolution or winding up of the affairs of
the Company by 864,293. If, upon any such voluntary or involuntary
liquidation, dissolution or winding up of the affairs of the Company,
the assets of the Company legally available therefor after the payment
in full of all preferential liquidation amounts to which the holders of
outstanding shares of Preferred Stock or Preference Stock ranking
senior to the Series F Stock shall be entitled but before any
distribution or payment shall be made to the holders of outstanding
Junior Securities, shall be insufficient to permit the payment in full
to the holders of outstanding shares of Series F Stock of the
preferential liquidation amounts to which they are then entitled, the
entire assets of the Company thus distributable shall be distributed
among the holders of outstanding shares of Series F Stock ratably, in
proportion to the full amounts to which such holders would otherwise be
entitled if such assets were sufficient to permit payment in full. In
addition, after the payment in full of all preferential liquidation
amounts to which the holders of outstanding shares of Series F Stock
shall be entitled, the holders of all outstanding shares of Common
Stock, and the holders of outstanding shares of Series F Stock shall be
entitled to receive the entire assets of the Company available for
distribution, ratably with the holders of outstanding shares of Common
Stock, in proportion to the ratio which the total number of shares of
Common Stock into which the outstanding shares of Series F Stock would
be convertible on the effective date of such voluntary or involuntary
liquidation, dissolution or winding up of the affairs of the Company
bears to the total number of shares of Common Stock deemed to be
outstanding on such date (assuming for this purpose the conversion of
all outstanding shares of Series F Stock on such effective date). Each
holder of outstanding shares of Series F Stock shall be entitled to
receive that portion of the assets of the Company available for
distribution which the number of shares of Common Stock issuable upon
conversion of such holder's shares of Series F Stock bears to the total
number of shares of Common Stock deemed to be outstanding on the
effective date of such voluntary or involuntary liquidation,
dissolution or winding up of the affairs of the Company.
(B) In the event of any voluntary or involuntary liquidation,
dissolution or winding up of the affairs of the Company which
is after the ESOP Payment Date, after the payment in full of
all preferential liquidation amounts to which the holders of
outstanding shares of Preferred Stock or Preference Stock
ranking senior to the Series F Stock shall be entitled, but
before any distribution or payment to the holders of Junior
Securities, the holders of outstanding shares of Series F Stock
shall be entitled to receive out of the assets of the Company
at the time legally available therefor, an amount equal to
$39.056 per share, together with all dividends accrued
(whether or not declared) during the dividend period in which
such liquidation, dissolution or
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winding up occurs and all cumulated and unpaid dividends, if any,
accrued during any prior Dividend Periods. In addition, after the
payment in full of all preferential liquidation amounts to which the
holders of outstanding shares of Series F Stock shall be entitled, the
holders of outstanding shares of Series F Stock shall be entitled to
receive the entire assets of the Company available for distribution,
ratably with the holders of outstanding shares of Common Stock, in
proportion to the ratio which the total number of shares of Common
Stock into which the outstanding shares of Series F Stock would be
convertible on the effective date of such voluntary or involuntary
liquidation, dissolution or winding up of the affairs of the Company
bears to the total number of shares of Common Stock deemed to be
outstanding on such date (assuming for this purpose the conversion of
all outstanding shares of Series F Stock on such effective date). Each
holder of outstanding shares of Series F Stock shall be entitled to
receive that portion of the assets of the Company available for
distribution which the number of shares of Common Stock issuable upon
conversion of such holder's shares of Series F Stock bears to the total
number of shares of Common Stock deemed to be outstanding on the
effective date of such voluntary or involuntary liquidation,
dissolution or winding up of the affairs of the Company as set forth
above.
7. Redemption. The shares of Series F Stock shall not be redeemable by
the Company.
8. Conversion.
(A) From and after the Date of Issuance of shares of Series
F Stock and prior to the expiration of thirty days following
the ESOP Payment Date, each share of Series F Stock shall
be convertible, at the option of the holder thereof, into one
fully-paid and nonassessable share of Common Stock of the
Company, subject to adjustment as hereinafter set forth in
subclause (E) below.
(B) From and after the thirty-first day following the ESOP
Payment Date, each share of Series F Stock shall be
convertible, at the option of the holder thereof, into .3644353
of a fully-paid and nonassessable share of Common Stock of
the Company, subject to adjustment as hereinafter set forth
in subclause (E) below.
(C) To exercise such conversion option, the holder of shares
of Series F Stock shall surrender the certificate or certificates
representing the shares of Series F Stock to be converted,
duly endorsed for transfer to the Company, at the principal
executive office of the Company, and shall give written notice,
postage prepaid, by certified or registered mail, return receipt
requested, or by hand delivery to the Company at its principal
executive office, of the
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election of such holder to convert all or a portion of the shares of
Series F Stock represented by the certificate or certificates
surrendered into shares of Common Stock which notice shall set forth
the name or names in which the certificate or certificates representing
the shares of Common Stock to be issued upon conversion are to be
issued. Conversion shall be deemed to have been effected on the date of
receipt by the Company of such notice and the certificate or
certificates to be surrendered for conversion (the "Conversion Date").
As promptly as practicable thereafter, the Company shall issue to or
upon the written order of such holder, a certificate or certificates
for the number of full shares of Common Stock to which such holder is
entitled. The conversion of shares of Series F Stock into shares of
Common Stock shall be deemed to be effective and such holder, or the
person or persons designated by such holder, shall be deemed to have
become a holder of record of the shares of Common Stock issuable upon
conversion of such shares of Series F Stock on the applicable
Conversion Date unless the transfer books of the Company are closed on
such date, in which event such holder shall be deemed to have become a
holder of record of the shares of Common Stock issued upon conversion
of the shares of Series F Stock on the next succeeding date on which
the transfer books of the Company are open. Upon conversion of only a
portion of the number of shares of Series F Stock represented by a
certificate or certificates surrendered for conversion, the Company
shall issue and deliver to or upon the written order of the holder of
the certificate or certificates so surrendered a new certificate or
certificates representing the number of shares of Series F Stock not so
converted.
(D) No fractional shares of Common Stock shall be issued upon
conversion of shares of Series F Stock. In lieu of issuing fractional
shares of Common Stock upon conversion of shares of Series F Stock, the
Company shall pay a cash adjustment in respect of such fractional
shares of Common Stock equal to the fair market value thereof as
determined by the Board of Directors of the Company. The Company shall
at all times reserve and keep available out of its authorized but
unissued shares of Common Stock, solely for the purpose of effecting
the conversion of outstanding shares of Series F Stock, the full number
of shares of Common Stock deliverable upon the conversion of all shares
of Series F Stock from time to time outstanding.
(E) The number of shares of Common Stock into which a share of Series
F Stock shall be convertible as set forth in subclauses (A) and (B)
above, shall be subject to adjustment from time to time as follows:
(i) In case the Company shall at any time subdivide its
outstanding shares of Common Stock or shall issue a dividend or
other distribution payable in shares of Common Stock, the number
of shares of Common Stock into which a share of Series F Stock
shall be convertible shall be
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proportionately increased, effective immediately after the
effective date of such subdivision or at the close of business on
the record date fixed by the Board of Directors of the Company
for such dividend or other distribution, as the case may be;
(ii) In case the Company shall at any time combine its
outstanding shares of Common Stock, the number of shares of
Common Stock into which a share of Series F Stock shall be
convertible shall be proportionately decreased, effective
immediately after the effective date of such combination; and
(iii) In case the Company shall at any time recapitalize or
reclassify its capital stock, or in case of any consolidation or
merger of the Company with or into any other person (other than a
consolidation or merger in which the Company is the continuing
entity and which does not result in any change in the capital
stock of the Company) or in case of the sale or other disposition
of all or substantially all the assets of the Company to any
other person, then in each such case each outstanding share of
Series F Stock shall after such recapitalization,
reclassification, consolidation, merger, sale or other
disposition be convertible into the kind and number of shares of
capital stock or other securities or assets of the Company or of
the entity resulting from such consolidation or surviving such
merger or to which such assets shall have been sold or otherwise
disposed of to which the holder thereof would have been entitled
if immediately prior to such recapitalization, reclassification,
consolidation, merger, sale or other disposition such holder had
converted its shares of Series F Stock. The provisions set forth
above shall apply to successive recapitalization,
reclassifications, consolidations, mergers, sales or other
dispositions.
(F) All shares of Common Stock issued upon conversion of shares of
Series F Stock shall, upon issuance by the Company, be duly and
validly issued, fully-paid and nonassessable and free from all taxes,
liens and charges with respect to the issuance thereof.
9. Voting Rights. The holders of shares of Series F Stock shall be
entitled to vote on or otherwise consent to any matter requiring the vote or
consent of the stockholders of the Company under the laws of the State of
Delaware. Each holder of outstanding shares of Series F Stock shall be entitled
to one vote for each whole share of Common Stock into which such holder's
outstanding shares of Series F Stock would be convertible immediately after the
close of business on the record date fixed by the Board of Directors of the
Company for determining the stockholders of the Company entitled to vote or
otherwise consent to such matter; provided, however, that in the event (x) the
Company shall fail to pay cumulative dividends in full on the outstanding shares
of Series F Stock for a period of
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four consecutive Dividend Periods, or (y) the Company shall fail to pay
cumulative dividends in full on the outstanding shares of Series F Stock for a
period of eight Dividend Periods, in either case after the expiration of thirty
days following the ESOP Payment Date, each holder of outstanding shares of
Series F Stock shall be entitled to the number of votes equal to the number of
whole shares of Common Stock which such holder would have been entitled to
receive if the shares of Series F Stock held by such holder had been converted
into shares of Common Stock prior to the expiration of thirty days following the
ESOP Payment Date until such time as all cumulative dividends in arrears with
respect to the shares of Series F Stock shall have been paid in full. Except as
otherwise required by the laws of the State of Delaware, the holders of
outstanding shares of Series F Stock shall vote together with the holders of
outstanding shares of Common Stock as a single class.
FIFTH: At all elections of Directors of the Company, each stockholder
who is entitled to vote upon such election shall be entitled to as many votes as
shall be equal to the number of votes which (except for this provision as to
cumulative voting) he would be entitled to cast for the election of Directors
with respect to his shares of stock multiplied by the number of Directors to be
elected, and he may cast all of such votes for a single Director or may
distribute them among the number to be voted for or for any two or more of them,
as he sees fit.
SIXTH: In furtherance and not in limitation of the powers conferred
by statute, the Board of Directors is expressly authorized to make, alter or
repeal the Bylaws of the Company.
SEVENTH: The Company shall indemnify any and all persons whom it has
the power to indemnify pursuant to the Delaware General Corporation Law against
any and all expenses, judgments, fines amounts paid in settlement, and any other
liabilities to the fullest extent permitted by such Law and may, at the
discretion of the Board of Directors, purchase and maintain insurance, at its
expense, to protect itself and such persons against any such expense, judgment,
fine, amount paid in settlement or other liability, whether or not the Company
would have the power to so indemnify such person under the Delaware General
Corporation Law.
A director of the Company shall not be personally liable to the Company or
its stockholders for monetary damages for breach of fiduciary duty as a
director, except for liability (i) for any breach of the director's duty of
loyalty to the Company or its stockholders, (ii) for acts or omissions not in
good faith or which involve intentional misconduct or a knowing violation of
law, (iii) under Section 174 of the Delaware General Corporation Law, or (iv)
for any transaction from which the director derived any improper personal
benefit. If the Delaware General Corporation Law is amended after approval by
the stockholders of this article to authorize corporate action further
eliminating or limiting the personal liability of directors, then the liability
of a director of the Company shall be eliminated or limited to the fullest
extent permitted by the Delaware General Corporation Law, as so amended.
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Any repeal or modification of the foregoing paragraph by the stockholders
of the Company shall not adversely affect any right or protection of a director
of the Company existing at the time of such repeal or modification.
IN WITNESS WHEREOF, this Restated Certificate of Incorporation, which only
restates and integrates and does not further amend the provisions of the
Certificate of Incorporation of the Company as heretofore amended, supplemented
or restated and there being no discrepancies between those provisions and the
provisions of this Restated Certificate of Incorporation and it having been duly
adopted in accordance with Section 245 of the General Corporation Law of the
State of Delaware by the Executive Committee of the Board of Directors, which
Committee is authorized to act on behalf of the Company's Board of Directors,
has been executed by its Vice President and attested by its Secretary on this
30th day of November, 1993.
Mattel, Inc.
By: /s/ Judy A. Willis
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Vice President
Attest:
By: /s/ N. Ned Mansour
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Secretary
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